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tv   [untitled]    October 9, 2012 2:30pm-3:00pm PDT

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deemed official misconduct according to the jortd's view. >> supervisor kim: do you feel there is enough conversation to delineate what might be considered wrongful behavior that would fall below the standard of decency that would differentiate between a dui and a domestic violence misdemeanor? >> i'm sorry, i'm not sure i'm understanding the question. >> supervisor kim: i guess my question then -- so my question is, was there any sort of discussion that you felt would lead to any kind of delineation amongst the types of misdemeanors that you could -- to or be convicted of, that there was some that fell below the standard of decency, and some that may not? and that may be a difficult question. if you can't answer that, i understand. >> we did actually try very hard to talk about hypotheticals to find out where that line might be. i think the way we came out with is we did not find any example of unlawful behavior that would
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likely not fall below the standard for the sheriff. and certainly the sheriff's expert deemed any wrongful conduct would be official misconduct for a sheriff. now we did talk about hypotheticals where, for example, lying to your spouse about what time you might come home for dinner could be wrongful conduct but not likely something that would fall below the standard. >> supervisor kim: thank you. >> president chiu: colleagues, any additional questions? okay. mr. chairman, i want to thank you and your colleagues for your service in recent months and i think we will proceed to the next presentation. >> thank you very much. appreciate your time. >> president chiu: at this time, we will hear from representatives for the mayor. you have up to 20 minutes. >> good afternoon, president chiu, honorable members of the board of supervisors. i am sherry keyser. i am a deputy city attorney and i've been representing the mayor in these proceedings. i'm here today on behalf of the
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mayor to ask you to adopt the careful and thoughtful recommendations and findings of the ethics commission, and to sustain the charges of official misconduct against sheriff mirkarimi. as you have heard, and as you may even have followed at the time, the ethics commission was extremely diligent in these proceedings, conducted many hearings, reviewed the testimony from many witnesses, additional documentary evidence, heard live testimony, made credibility determinations, received numerous rounds of briefing and very carefully considered the issues before it. it has already trod all of the ground that's being presented to you. it's considered the arguments that the sheriff is raising today, and it's already rejected them. you should reject them too, and you should sustain the charges of official misconduct.
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now, as chairperson hur was referencing a moment ago, the report and recommendation of the ethics commission based its findings and its recommendation mostly on the domestic violence conduct of the sheriff on the incident of new year's eve but also on his subsequent conviction and his sentence, a sentence by the way that is quite serious, a sentence to a day in the jail that he runs is sentence to three years of personal supervision by a probation officer next to the various other folks that he's letting out of jail, and 52 weeks of mandatory domestic violence counseling, again in the company of the very people whose imprisonment he has
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supervised if they had recently been released from jail. the ethics commission found that this was not a simple act that took place on december 31, but that it's a course of continuing conduct. it continued into march with pleading guilty. it continued into the following week, with his sentence. and it now continues to this day, with all of the actions that the sheriff must take to complete his sentence as he's under the continuing jurisdiction of the criminal justice system. the ethics commission found that particularly the conduct on december 31st when the sheriff bruceed his wife's arm and violated her personal liberty, that this conduct was serious. they found that he was a public officer at every juncture. they found that he committed this conduct after he had already been elected to office. and they also found that this
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misconduct was centrally related to the duties that the sheriff has, the duty to enforce the law, to administer the jails, to lead his deputies by example, to protect victims of domestic violence. the mayor put in really quite a bit of evidence about all the ways in which the subject matter of the sheriff's duties is -- touches on domestic violence, offender rehabilitation, officer discipline, et cetera, things that are affected throughout all of his performance. now, the sheriff argues that since he was elected to office, it should be left to the people to recall him from office, through the recall procedure. but that's really wrong. the san francisco charter, as you know, is the city's constitution. it contains the most fundamental rules and principles that the people have determined for themselves about how they wish to be governed.
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and one of the ways that the people would like to be governed is they would like to have a process, and have votes -- this process, whereby officials who may have already -- whom they have already elected can be removed from office if they commit official misconduct after the election. and you're here really to enforce the people's judgment that they are asking their mayor, their ethics commission, the board of supervisors, to take action, to protect them from officials who commit official misconduct. the people have also given you the mayor and the ethics commission a definition of official misconduct. it requires wrongful conduct by a public officer in relation to the duties of his or her office. now, the sheriff can test the ethics commission findings that his crime and his conviction and his sentence constitute official misconduct because he had not
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yet taken the oath of office when he attacked his wife. he says there's no relationship between his misconduct and the duties of his office. and he also argues, although usually not in his briefing, that his misconduct just isn't that serious, just wasn't serious enough to warrant removal. i'd like to address each of these three points in turn. first of all, as the superior court already did, and as the ethics commission implicitly did, this board should reject the argument that the sheriff cannot be removed for misconduct prior to taking the oath of office. you know, first of all, as a matter of fact, his misconduct isn't limited to only deeds on december 31. it's an ongoing course of conduct that began on december 31, and continues to this day, and will not end for another two and a half years when he has
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finally finished his criminal sentence. but, second, even if the only misconduct to take place on december 31, there simply is no oath of office requirement in the charter that says that official misconduct can only occur after an official is sworn in. rather, the charter language requires that official misconduct must be committed by a public officer. the sheriff argues that you can't be a public officer until you're sworn in. the mayor argues that you're a public officer as soon as you're elected. and if you -- you know, the charter doesn't say either that it's a sworn officer or an elected officer. but if you look at all of the policy concerns, and the case law, it becomes clear that it makes no sense whatsoever to draw the line at the oath of office rather than at the election.
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it would be contrary to the voter's intent to enhance the ethical responsibilities of their public officials and hold them accountable to imply this two month free zone in between the election and taking the oath of office, where that elected official could do whatever he wanted with no consequences with his public position, until that moment when he walks up to the lectern and raises his hand. it also would lead to absurd results. an elected official could, for example, commit domestic violence on tuesday, and be safe from any official consequences. but if the oath of office is later that day, he couldn't do the same thing on wednesday. that's a completely arbitrary line. it makes no sense whatsoever. it's very different if you draw the line at the election. that makes perfect sense. once an official has been granted the voters trust, then
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he also has the ethical obligation to protect that trust by not committing official misconduct. there is no such sensible distinction drawn at the line of the election. and in fact, there is not a single case anywhere, in any jurisdiction, that overturns the finding of official misconduct on a basis that an elected official had not been sworn in at the time that he committed a misdeed. the sheriff relies exclusively on the mazzola decision, but mazzola didn't consider, for a moment, whether or not it mattered that the conduct occurred before or after swearing in. mazzola's an airport commissioner. he wasn't even sworn in. there is no oath of office for an airports commissioner and there was no dispute in the case that he was not a sitting commissioner at all times during the events.
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>> president chiu: counsel, a question from our colleague. >> that surprises me. i've attended i can't tell you how many commissioner swearing in. what's the difference? you're correct, there is a swearing in for a commissioner, but there's not this two month post election period, where you're elected on november 8 and sworn in two months later leading into this sort of lengthy period of kind of twilight zone time. that's what i meant to say. not that there's no swearing in but there's this ininstitutionallized swearing in period that you haven't been sworn in. thank you for clair for clarify. there is a case on point from 2010 in which a new york state senator named hiram maz rat-i committed domestic violence to
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his girlfriend between being elected in november and being sworn in in january. he committed his domestic violence in december. the new york senate didn't hesitate to remove him and the second circuit didn't hesitate to uphold that removal. despite the fact that that act of domestic violence occurred before the swearing in. and in fact the most restrictive jurisdictions that do draw a line and protect elected officials from accountability for acts of official misconduct the most restrictive of them draw the line at the most recent election. there is not a single jurisdiction that draws the line at the swearing in ceremony and protects elected officials for those first two months. you should also reject the sheriff's relationship argument that his misconduct was not related to the duties of office, at least not as that relationship test is contemplated by the
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san francisco charter. as the ethics commission majority explained and held, the nature of the sheriff's misconduct relates to his duties as chief law enforcement officer in his role administering the city's domestic violence programs. the fact that the relationship test is interpreted by the ethics commission majority to include a subject matter relationship is really very sensible. what happens if you commit misconduct in the very terrain, the very subject matter that you're charged with as a government official is you implicate the public character of your office. if you're the tax collector, and you misrepresent your income on your income taxes, that's not purely private misconduct. that is a matter of public concern because it shows the public that it has a fox in the
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henhouse, essentially. that's very different, if, for example, you're an animal control officer and you misrepresent your income on your taxes. and think of it in reverse. what if you're an animal control officer. is there a relationship to the duties of your position if you're running a dog fight ring? in your private time? of course there is. no one wants michael vic in control of the animal control department. at the same time, if michael vic -- i'm sorry, at the same time if that person isn't fairly disclosing all of their income on income taxes, that may not have an official dimension. that may be purely private misconduct because there is no apparent overlap between the misconduct and the duties. chairperson hur explained i think quite eloquently his
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concern that the relationship test needs to be a bright line test. and the only way to do that, in his view, is to exclude this motion of subject matter relationship. i'm not sure that i agree, and the mayor certainly does not agree, with commissioner hur's decision to emphasize the need for a bright line rule over the voters intent that i think is more fairly inferred to place broad and binding ethical duties on its elected officials. the clarity simply for the sake of clarity, predictability simply for the sake of predictability is not a reason to ignore or to narrowly constrict ethical duties of officers. and it's also not the case that there has been some sort of broad misuse of mayoral or
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executive power that this sort of lack of clarity could inspire. commissioner hur was very careful, actually, to say that he didn't think any such abuse of power happened in this case. and there is no case that was discussed or brought to the attention of the commission in which such an abuse of power did occur. and if such an abuse of mayoral power were going to occur, the solution is not to take subject matter relationships off the table as the subject of official misconduct. the solution is to rely on the tripar tie trurkt o structure of the process that voters put in place. there are careful controls for potential of abuse of executive power. the check on that is the agents commission. the check on that is this body. we don't need to take certain forms of official misconduct and place them beyond the board's
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and the people's reach. commissioner hur also concluded, and the sheriff certainly enthusiastically agrees, that this reasoning is compelled by the mazzola decision. but that's simply not the case. it would be compelled by the mazzola decision if, in that case, commissioner mazzola, who is an airports commissioner, had engaged in some sort of private misconduct in a way that had a subject matter relationship with his duties as an airports commissioner, but he did so on his own time or in his private capacity. say for example, you know, i don't know, he took his private vehicle, and went for a joyride on airport property, but he didn't do it by showing his airport badge. now, if mazzola had considered something like that, where there was a subject matter relationship, and concluded that there is a subject matter
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relationship, but it does not support a finding of official misconduct, then mazzola would be binding authority. as it stands, mazzola didn't consider any issue like that. the conduct with which commissioner mazzola was charged had nothing to do with his job or the subject matter of his role as an airports commissioner and so mazzola really sheds little light on that question. it certainly does not compel the result that a subject matter relationship is not enough. and consider what you should really be guided by, what this board and the agents commission and the mayor must be guided by and that's the language the people put into the charter. the charter language imposes a test whereby it's official misconduct if a public officer engages in wrongful behavior and here's the important part, in relation to the duties of his or her office. if the people had wanted to restrict that to misconduct only
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occurs if the officer is acting in his or her official capacity or if he or she is acting under color of state law then the charter could say that. that is not what the charter says. that's not the language for mazzola that the charter picks up. the charter doesn't even pick up the indect relationship to language that commissioner hur has emphasized in his discussions. the charter chooses necessarily broad common sense in relationship to language that allows both for acting -- misusing your official powers but also for committing misconduct on the very same terrain that you have been charged as a government leader. that's what happened here. finally, i'd like to take a few moments to address the fact that the ethics commission felt that the sheriff's misconduct was
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really quite serious. and, frankly, that it was disturbed, all five commissioners separately commented on the fact that they felt that the sheriff, in his testimony to them, deliberately minimized and sanitized his account of the events of december 31, that he was not truthful, that he was not forthcoming, that his rendition of events, under oath, before the ethics commission, was not credible, was not trustworthy. i think that's a serious indictment of a sitting sheriff, if you cannot trust his testimony under oath, before the very commission that is there to test his ethical right to offi office. now, you sometimes hear often in the media because a lot of the statements about how this isn't such a big deal tend to get made
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more in the media than under oath, but you often hear, well gosh, it's not such a big deal, it's just an arm grab, it's just a little bruise, you know, these things happen. but i wonder, what is it about that that makes such conduct, for some people, not serious. is it not serious that the injury was only a bruise? would a more serious injury have made the incident serious, and worth condemning? or is it not serious perhaps because the person who received the the bruise was the sheriff's wife? well, of course these things are serious, and these things are serious not just because, you know, feminists have gone off the rails with some sort of zero tolerance policy about domestic violence, and have lost their common sense, these things are serious because family violence is an endemic -- or is an
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epidemic in this city and in this country. it's serious because it truly harms families. it truly harms san franciscans. it harms the people who call the crisis lines, the people -- the thousands of people who call 911. it matters to families, to residents, to neighbors, to communities, that people are violent in their homes. and that's one of the reasons why we have, as a community -- >> [timer sounding.] >> president chiu: thank you very much. i have a feeling, colleagues, probably will have some questions. i will start. counsel, i want you to address a little bit more the ethics commission chair's argument that official misconduct requires the involvement of the duties of one's office and that without some sort of clear bright line
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definition we could have future ad hoc interpretations of official misconduct. that -- having clarity in law seems to make sense. what i heard you say was that things are murky. this is not clear as we would want it to be. in fact weir here because it does not seem as clear as we want to be and it feeds into the sheriff's argument that the standard is vague. i wonder if it you could address what exactly the standard is if it's not completely clear. >> sure. i do not degree an agree and din to convey the standards is murky. i don't think that you can always predict, you know, two miles up what the result will be in every case. but that's far from saying that you have a standard that you can't apply, or that is unpredictable. the test in this case is whether
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the misconduct relates to the duties of office and whether that relationship can be evident in two different ways, it can be whether or not the official actually used the powers of office or committed misconduct while fulfilling the duties of office, or it can be the relationship test, the subject matter relationship test that i was emphasizing and discussing. now, it's not a 100% bright line rule only because different offices have different duties, and because there are lots of different kinds of wrongful behavior and misconduct that officials can engage in. but it's not actually a very difficult test to determine whether there's a relationship between the kind of thing the person did wrong, and the kind of office that person holds. and, in fact, there's quite a bit of case law in california that can be used as a guide, and
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that case law has developed in the context of employee misconduct. and, you know, there's -- there are several strands of cases that provide examples, and they're sort of interesting historical pieces because, for example, in the 1970's there's a whole string of cases about what does it mean to possess marijuana. does possession of marijuana fundamentally relate to the duties of a teacher such that the teacher needs to lose the teacher's license. does the possession of marijuana relate to the duties of a real estate broker, such that that person can't be a real estate broker anymore. the answer to that is no. the answer to the first question of a teacher is it depends on the circumstances. there's a teacher who wanders out in the field and finds a marijuana plant, and out of
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educational interest brings it home to see how it's going to grow. that person has not committed misconduct in relation to the duties of their office, but a teacher on a different set of facts, who's involved in more serious drug offenses, and who has more contact with youth and a more corrupting influence, that person's conduct does relate more to the duties of their office. so to bring sort of my answer back around, it is a fact-specific inquiry. it's an inquiry that you can't always predict the outcome of before you've seen the evidence and the facts of the case, what exactly the misconduct was, what exactly the duties are. the fact doesn't make it too vague to apply, it makes it a more nimble -- to find official misconduct where it exists and exempt misconduct is purely
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private and not official when the duties are not implicated. >> president chiu: you're suggesting we should think about fact specific situations where a public official has charter section 15.105(e) refers to conduct that falls below the standards of decency impliedly required of all public officers. how do you read that statement which seems to suggest there should be some sort of standard that is a little difficult i think for public officers of the public to completely understand, but you do suggest that even though the language refers to all public officers that, again, you believe strongly that there's a fact specific relevance to whatever the conduct is and whoever the public officer is? >> i do -- the mayor does take that position. and it's a position that is really informed by the extensive
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body of due process jurisprudence in the state, under which -- and again in the employee misconduct cases, it's the case that you can't just fire someone or deprive them of their property interest in their state employment -- and interest by the way is what an elected official does not have, he doesn't have a right to office, it's a privilege, but when you're taking away a state employee's right to their position, you do have to give them some notice, and you have to hold them to a standard of conduct that's specific to their position. nobody knows what the standard of decency for all state employees, with that minimum irreducible quantum of conduct would be. but people, in various professions, and various roles are presumed to know what the standard of conduct is that goes with their position, and that's
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certainly the case for someone who seeks to be a sheriff, that he should know and can be presumed to know what the standard of conduct is for a chief law enforcement officer. so although the language of the charter seems broad, it -- i mean there's certainly a good argument that it is a single standard. at the same time, it needs to be interpreted -- and is susceptible to being interpreted as a standard that his office-dependent. and again that would require a fact-specific inquiry. you can't decide in advance, without knowing what has happened in a particular case, whether it's misconduct or not misconduct. it depends on the office. >> president chiu: colleagues, follow-up questions. supervisor farrell. >> supervisor farrell: thanks, president chiu. madam city attorney, to follow up on that line of questioning though, on one hand you say it should be easy to


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